Schumacher v. City of Roswell, A16A0582

• Decision Date: 01 June 2016
• Docket Number: A16A0582
• Citation: 787 S.E.2d 254,337 Ga.App. 268
• Parties: Schumacher et al. v. City of Roswell.
• Court: Georgia Court of Appeals

337 Ga.App. 268

787 S.E.2d 254

Schumacher et al.

v.City of Roswell.

A16A0582

Court of Appeals of Georgia.

June 1, 2016

Certiorari Granted September 6, 2016

John R. Monroe, for Appellants.

Coleen Daugherty Hosack, Marietta, Dana Kristin Maine, Atlanta, Freeman Mathis & Gary, for Appellee.

Barnes, Presiding Judge.

Eric Schumacher and Mike Nyden, who are residents and residential property owners in the City of Roswell (the “City”), brought this action for declaratory and injunctive relief in the Superior Court of Fulton County to challenge the City's approval of a new zoning ordinance and map that rezoned their respective properties. After the superior court granted the City's motion for judgment on the pleadings and denied the plaintiffs' request for an interlocutory injunction as moot, the plaintiffs filed this direct appeal. Because the plaintiffs were required to appeal by discretionary application, we dismiss this appeal for lack of jurisdiction.

As reflected in the pleadings and attached exhibits, the plaintiffs are citizens and taxpayers of the City and own residential real property located there. In February 2014, after conducting two public meetings, the Council of the City of Roswell (the “City Council”) approved a new zoning ordinance called the Unified Development Code (“UDC”) and a new zoning map. The UDC substantially replaced the City's existing zoning ordinance and rezoned the plaintiffs' properties.

Following the adoption of the UDC and new zoning map, the plaintiffs commenced the present action against the City,¹ challenging the manner in which the City Council had approved the UDC and map. In their complaint, as later amended, the plaintiffs alleged that the adoption of the UDC violated Georgia's Zoning Procedures Law, OCGA § 36–66–1 et seq. ; violated the plaintiffs' due process rights under the state and federal Constitutions; violated the Roswell City Charter; and violated the conflict-of-interest laws applicable to zoning actions codified in OCGA § 36–67A–1 et seq. The plaintiffs alleged that they were harmed by the rezoning of their residential properties under the UDC, and they sought a declaratory judgment that the UDC was void and unenforceable as illegally enacted, an injunction prohibiting its enforcement, and attorney fees and costs.

The City answered, denying the plaintiffs' allegations, and attached and incorporated by reference to their answer certified copies of the UDC, the new zoning map, and the minutes of the two City Council meetings where the UDC and map were discussed and approved. The City also filed a motion for judgment on the pleadings, seeking dismissal of all of the plaintiffs' claims. The plaintiffs opposed the City's motion for judgment on the pleadings and filed a motion for interlocutory injunction to prohibit enforcement of the UDC during the pendency of the litigation. After conducting a hearing in which the parties presented oral argument, the trial court granted the City's motion for judgment on the pleadings on all of the plaintiffs' claims and denied the plaintiffs motion for an interlocutory injunction as moot.

The plaintiffs filed a direct appeal from the trial court's order, challenging only the dismissal of their state and federal constitutional due process claims.² The City moved to dismiss the plaintiffs' direct appeal for lack of jurisdiction, arguing that the plaintiffs were required to comply with the application procedures for discretionary appeal.

Two principle statutes determine the method for pursuing appeals in our Court: OCGA § 5–6–34 describes the trial court judgments and orders that parties may appeal directly, while OCGA § 5–6–35 describes the cases in which parties must file an application for discretionary appeal. Rebich v. Miles , 264 Ga. 467, 468, 448 S.E.2d 192 (1994). If an appellant files a direct appeal under OCGA § 5–6–34 in a case in which a discretionary application was required under OCGA § 5–6–35, this Court lacks jurisdiction to hear the merits of the appeal and must dismiss it. Id.

OCGA § 5–6–35 (a) (1) provides that “[a]ppeals from decisions of the superior courts reviewing decisions of ... state and local administrative agencies” must be brought by application for discretionary appeal. See Hamryka v. City of Dawsonville , 291 Ga. 124, 125, 728 S.E.2d 197 (2012). “The General Assembly passed OCGA § 5–6–35 to assist in reducing the massive caseload of the appellate courts,” and the legislative intent behind OCGA § 5–6–35 (a) (1) was to give appellate courts the discretion not to entertain an appeal where two tribunals (the superior court and an administrative agency) had already heard the matter. Rebich , 264 Ga. at 468, 448 S.E.2d 192.

Construing OCGA § 5–6–35 (a) (1), our Supreme Court held in Trend Dev. Corp. v. Douglas County , 259 Ga. 425, 383 S.E.2d 123 (1989) that appellate review of superior court orders reviewing county commissions' zoning decisions require a discretionary application. As the Supreme Court later explained:

A case filed in either appellate court that involves zoning must come by application when “it is an appeal from the decision of a court reviewing a decision of an administrative agency” within the meaning of OCGA § 5–6–35 (a) (1). In essence, this Court determined in Trend and its progeny that a zoning decision made by a local government was the action of a local administrative agency within the meaning of OCGA § 5–6–35 (a) (1), and an appeal from a superior court decision reviewing the local administrative agency's decision must come by way of application pursuant to OCGA § 5–6–35 (a) (1).

(Citations omitted.) Fulton County v. Congregation of Anshei Chesed , 275 Ga. 856, 857, 572 S.E.2d 530 (2002).

Additionally, since Trend, the Georgia Supreme Court has clarified that OCGA § 5–6–35 (a) (1) applies not only to cases where a party appeals directly to the superior court from the local government's zoning decision, but also in cases where a party collaterally attacks the local government's zoning decision by filing an action in superior court for mandamus, declaratory judgment, or injunctive relief. See Hamryka , 291 Ga. at 125(2), 728 S.E.2d 197 ; Ladzinske v. Allen , 280 Ga. 264, 265, 626 S.E.2d 83 (2006) ; Ferguson v. Composite State Bd. of Med. Examiners , 275 Ga. 255, 258, 564 S.E.2d 715 (2002). As the Supreme Court noted in Hamryka , 291 Ga. at 125(2), 728 S.E.2d 197, OCGA § 5–6–35 (a) (1) “is not limited to ‘appeals' to the superior court but instead applies to appeals from the superior court's ‘review[ ]’ of an administrative agency decision, however that judicial review is sought.” (Emphasis in original.) Accordingly, if a plaintiff's action filed in superior court “attacks or defends the validity of [a local government's zoning decision] and seeks to prevent or promote the enforcement thereof, the [superior] court must necessarily ‘review’ the [zoning] decision before ruling on the [plaintiff's] request” for relief, and the appeal of the superior court's ruling must proceed by discretionary application. (Punctuation and footnotes omitted.) Ferguson , 275 Ga. at 258–259(2), 564 S.E.2d 715.

Here, the plaintiffs' amended complaint seeking declaratory and injunctive relief challenged the City Council's zoning decision to approve the UDC and new zoning map on constitutional due process and other grounds, and the plaintiffs sought to have the UDC and map declared and void and to prevent their enforcement. None of the plaintiffs' requests for relief were independent of the City Council's decision to approve the UDC and map, and none of the requests for relief could be granted or denied by the superior court without affirming or reversing the City Council's decision. Under these circumstances, we conclude that the plaintiffs' appeal was from the superior court's review of a local government zoning decision, requiring appeal by discretionary application under OCGA § 5–6–35 (a) (1). See Trend Dev. Corp. , 259 Ga. 425–426(1), 383 S.E.2d 123.

The plaintiffs, however, argue that they were not required to file a discretionary application because the City Council's decision to approve the UDC and map was a “legislative” rather than an “administrative” zoning decision. Specifically, the plaintiffs draw a distinction between a “legislative” decision by the City Council to approve a new zoning ordinance and map as occurred in this case and a more specific “administrative” decision by the City Council regarding the zoning of a specific parcel of land. According to the plaintiffs, a discretionary application is only required in the latter circumstance.

The plaintiffs' effort to distinguish between a “legislative” and “administrative” zoning decision by a local government is misguided in the context of evaluating our appellate jurisdiction in zoning cases. Trend construed a county commission's vote on a rezoning proposal as a local administrative agency decision for purposes of determining the method of appeal, see Trend Dev. Corp. , 259 Ga. at 425–426(1), (2), 383 S.E.2d 123, despite the fact that in other contexts, the Court had held that “commissioners in voting on either a zoning or rezoning proposal are functioning in a legislative capacity.” Olley Valley Estates v. Fussell , 232 Ga. 779, 781, 208 S.E.2d 801 (1974). The Supreme Court's decision in Trend therefore reflects that a zoning decision that could be characterized as “legislative” in other contexts still can fall within the ambit of OCGA § 5–6–35 (a) (1).

Furthermore, it is undisputed that the City Council's approval of the UDC and map rezoned the properties of the plaintiffs and other property owners. Clearly, Trend and its progeny establish that rezoning decisions as to particular parcels of property are local administrative agency decisions under OCGA § 5–6–35 (a) (1), see Trend Dev. Corp. , 259 Ga. at 425–426(1), (2), 383 S.E.2d 123 ; Nelson v. Fulton County , 262 Ga.App. 382, 382, 585 S.E.2d 710 (2003) ; Pruitt v. Fulton County , 210 Ga.App. 873, 873,...